IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Atropin Palmer, :

Plaintiff, :

v. : Case No. 2:11-cv-503

Sheriff Fred Abdalla, : JUDGE GEORGE C. SMITH

Magistrate Judge Kemp

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff Atropin Palmer, a prisoner proceding pro se, is

currently incarcerated at the Southern Ohio Correctional

Facility. On June 16, 2011 Mr. Palmer filed an action under 42

U.S.C. §1983 against Defendant Fred Abdalla, the Jefferson County

Ohio Sheriff. On August 5, 2011, after he had filed an answer,

Sheriff Abdalla filed a motion to dismiss. Mr. Palmer filed a

response on August 11, 2011. On August 23, 2011, Defendant filed

a reply. For the following reasons, the Magistrate Judge

RECOMMENDS that the motion to dismiss be DENIED. 

I. FACTUAL BACKGROUND

The following statement of facts is taken from Mr. Palmer’s

complaint. Mr. Palmer was transferred from the Ross Correctional

Institution to the Jefferson County Jail on or about February 7,

2011. Upon his arrival, he “was placed in an area of the

Jefferson County Jail where he was subjected to subfreezing

temperature without sufficient means to maintain warmth.” 

Furthermore, “during the course of his confinement within the

county jail, there were no heating or ventilation ducts which

produced a sufficient amount of heat to increase the heat or

temperature within said living area.” He was given only one

blanket and was not provided with any bedding or a mattress to

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 1 of 8 PAGEID #: <pageID>
-2-

sleep on. On several occasions, Mr. Palmer asked jail officials

for additional blankets, but his requests were denied. Mr.

Palmer remained under these conditions for four days before being

transferred back to the Ross Correctional Institution. It is on

the basis of these facts that the pending motion will be decided.

II. LEGAL STANDARD

Under Rule 12(b)(6), a claim may be dismissed for “failure

to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). Rule 12(c) states that once the pleadings are

closed, “a party may move for judgment on the pleadings”. Fed.

R. Civ. P. 12(c). The standards of review for motions to dismiss

under Rule 12(b)(6) and Rule 12(c) are identical. Sensations,

Inc., v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). 

When considering a motion to dismiss pursuant to either Rule

12(b)(6) or Rule 12(c), a court must construe the complaint in

the light most favorable to the plaintiff and accept all wellpleaded material allegations as true. See Scheuer v. Rhodes, 416

U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corp.,

705 F.2d 134, 155 (6th Cir. 1983). In order “[t]o survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949. Finally, pro se complaints are held to

“less stringent standards than formal pleadings drafted by

lawyers,” Haines v. Kerner 404 U.S. 519, 520 (1972), “and should

therefore be liberally construed.” Williams v. Curtain, 631 F.3d

380, 383 (6th Cir. 2011). 

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 2 of 8 PAGEID #: <pageID>
-3-

III. DISCUSSION

42 U.S.C. §1983 provides in relevant part: “Every person

who, under color of any statute, ordinance, regulation, custom,

or usage, of any State . . . , subjects, or causes to be

subjected, any citizen of the United States ... to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured

in an action at law . . . .” 42 U.S.C. §1983. 

A plaintiff seeking relief under §1983 may bring a claim

against a public official in the official’s individual or

official capacity. Individual-capacity claims “seek to impose

individual liability upon a government officer for actions taken

under color of state law.” Hafer v. Melo, 502 U.S. 21, 25

(1991). In contrast, an official-capacity claim is “another way

of pleading an action against an entity of which an officer is an

agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978). If the plaintiff does not specify in the complaint which

type of claim he or she is bringing, the Court “must assume that

[defendants] are being sued in their official capacities.” 

Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1989).

Mr. Palmer does not explicitly state whether he seeks relief

from Sheriff Abdalla in his individual or his official capacity. 

However, the fact that Mr. Palmer demands judgment against the

Jefferson County Jail indicates that he is bringing an officialcapacity claim. Moreover, since Mr. Palmer did not specify which

type of claim he was bringing in the complaint, the Court must

construe his claim to be against Sheriff Abdalla in his official

capacity. 

For an official-capacity claim to be successful, the

“plaintiff must: 1) identify a municipal policy or custom; 2)

connect that policy or custom to the municipality; and 3) show

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 3 of 8 PAGEID #: <pageID>
-4-

that execution of that policy or custom caused the particular

injury.” Janis v. Marcum 77 Fed.Appx. 308, 310 (6th Cir. 2003)

(citing Garner v. Memphis Police Dep’t., 8 F.3d 358, 364 (6th

Cir. 1993)). Sheriff Abdalla argues that Mr. Palmer has failed

to satisfy the first element - identifying a municipal policy or

custom. 

“There are at least four avenues a plaintiff may take to

prove the existence of a municipality's illegal policy or custom.

The plaintiff can look to (1) the municipality's legislative

enactments or official agency policies; (2) actions taken by

officials with final decision-making authority; (3) a policy of

inadequate training or supervision; or (4) a custom of tolerance

or acquiescence of federal rights violations.” Thomas v. City of

Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). 

Turning first to Mr. Palmer’s allegations of temperature

generally, he claims he “was placed in an area of the Jefferson

County Jail where he was subjected to subfreezing temperature”

and “that during the course of his confinement within the county

jail, there were no heating or ventilation ducts which produced a

sufficient amount of heat to increase the heat or temperature

within said living area.” However, courts have generally not

inferred official municipal policies from bare allegations of

cold temperatures in prisons. See Thigpen v. Reid, 2011 WL

240159, *1 (N.D. Ohio Jan. 24, 2011); LaPine v. Chippewa Cnty.

Corr. Facility, 2011 WL 3438481, *5 (W.D. Mich. Aug. 5, 2011)

(holding that a prisoner’s allegations regarding a number of

prison conditions, including the temperature of the facility and

its ventilation system, were not sufficient to state a claim

under §1983 because they did not identify a municipal policy or

custom). Nor can the Court infer the existence of an illegal

policy or custom based on the allegations here. 

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 4 of 8 PAGEID #: <pageID>
-5-

Mr. Palmer’s allegations do not point to a legislative

enactment or official agency policy regarding jail temperature. 

Mr. Palmer has also not alleged sufficient facts for the Court to

conclude that the temperature of his living area was the result

of “actions taken by officials with final policymaking

authority.” Thomas, 398 F.3d at 429. Although Sheriff Abdalla

is the final policymaker of the Jefferson County Jail pursuant to

O.R.C. §341.01, the Court cannot reasonably infer that any

actions on his part caused Mr. Palmer’s living area to be cold. 

Mr. Palmer also does not allege that the cold temperatures he

experienced were the result of actions taken by employees as a

result of “inadequate training or supervision.” Thomas, 398 F.3d

at 429.

Finally, Mr. Palmer’s complaint contains insufficient

factual content for the Court reasonably to infer that the

temperature of his living area resulted from “a custom of

tolerance or acquiescence of federal rights violations.” Thomas,

398 F.3d at 429. For a municipality to be liable under §1983 on

the basis of a custom, the practice in question “must be so

permanent and well settled as to constitute a custom with the

force of law.” Doe v. Claiborne Cnty. Tenn., 103 F.3d 495, 507-

508 (6th Cir. 1996). Mr. Palmer’s allegations do not provide the

Court with enough facts to infer that the temperature of his cell

resulted from a permanent or well settled jail custom. Mr.

Palmer simply alleges that his living area was cold for the four

days of his confinement without alleging any additional facts

indicating that keeping the temperature extraordinarily low was

an established practice in the jail. Accordingly, Mr. Palmer’s

allegations regarding the temperature of his living area do not

identify a policy or custom and therefore do not give rise to

municipal liability under §1983.

However, Mr. Palmer also alleges he was provided with only

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 5 of 8 PAGEID #: <pageID>
-6-

one blanket upon his transfer to Jefferson County Jail. He

states that on several occasions he requested additional blankets

from jail officials, but that his requests were denied. These

facts point toward the existence of an official jail policy

regarding blankets. The term “‘official policy’ often refers to

formal rules or understandings-often but not always committed to

writing-that are intended to, and do, establish fixed plans of

action to be followed under similar circumstances consistently

and over time.” Pembaur v. City of Cincinnati, 475 U.S. 469,

480-81 (1986). 

Construing Mr. Palmer’s complaint liberally, the Court may

reasonably infer that the jail’s “official policy” was to

consistently allow prisoners only one blanket, even in

extraordinarily cold conditions. See, e.g., Wheat v. N.Y.C.

Dep’t of Correction, 2010 WL 5129065, *5 (S.D.N.Y. Dec. 15, 2010)

(“Construing [Plaintiff’s] allegations liberally, . . .

[Plaintiff] alleges that more than one officer failed to provide

him with replacement shoes, that the prison did not even have

replacement shoes, and that when he filed a complaint, it went

unanswered. These facts amount to more than a bald assertion

that the City has a policy, custom or practice of violating

constitutional rights.”) 

The Court may reasonably infer that the jail’s policy

regarding blankets subjected Mr. Palmer to unconstitutional

prison conditions. See Franklin v. Franklin, 2000 WL 687434, *5

(6th Cir. 2000) (allegations by prisoner that “prison officials,

acting with deliberate indifference, exposed him to temperatures

that were close to freezing and failed to provide him adequate

clothing and blankets” sufficient to state violation of Eighth

Amendment under §1983); Banks v. York, 515 F.Supp.2d 89, 107

(D.D.C. 2007) (prisoner’s claims that jail lacked heating and

ventilation during the winter months and that defendants failed

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 6 of 8 PAGEID #: <pageID>
-7-

to provide enough blankets pursuant to Department of Corrections

policy were sufficient to state a claim against a municipality

under §1983.). Accordingly, Mr. Palmer has alleged sufficient

facts to set forth a claim under §1983 that he suffered an

unconstitutional deprivation as a result of Defendant’s policy or

custom regarding issuing blankets to prisoners. 

IV. CONCLUSION

Based on the foregoing reasons, the Magistrate Judge

recommends that Defendant’s motion to dismiss or for judgment on

the pleadings (#8) be DENIED. Because Sheriff Abdallah has filed

an answer, it is also recommended that Mr. Palmer’s motion for

default judgment (#10) be DENIED. 

V. PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 7 of 8 PAGEID #: <pageID>
-8-

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

 

Case: 2:11-cv-00503-GCS-TPK Doc #: 17 Filed: 10/26/11 Page: 8 of 8 PAGEID #: <pageID>